Understanding Divorce Mediation

Mediation is an intervention used to help settle disputes of all kinds. It can be especially useful in family law situations involving divorce and child custody.

During the mediation process, a professional mediator (a neutral third-party person) will work to help resolve disputes between the two parties. A mediator does not give legal advice, but instead helps facilitate voluntary agreements, through conflict resolution, that were not able to be reached alone or through the court system.

Divorce mediation, in general, has a high success rate. This has led many states, such as Texas and Rhode Island, to require mediation for certain divorcing parties.

This article can address the most common questions divorcing couples may have about arbitration.

Divorce mediation goals and benefits

The goals of mediation sessions are much different than a trial or divorce decided by the court system. Whether the court suggests divorce mediation, or it is taken on voluntarily by the two parties, divorce mediation should generally aim to:

1. Bring about a legally enforceable divorce agreement that is acceptable to both parties.
2. Lower added expense and hostility that can accompany traditional litigation.
3. Reduce negative effects on minor children that can result from divorce/custody battles.

Unlike a court settlement, the mediation results often include a settlement agreement that everyone can accept. A mediated divorce agreement is legally binding once both parties have signed. According to research, other benefits of divorce mediation may include:

• A comprehensive agreement that reduces the need for future court appearances.
• Financial and tax savings that can't be achieved through the court system.
• Less time spent than if litigation would have continued.
• Improved relationships between divorcing parties and parents and children.

A divorce mediation case study

Donna and her ex-husband James thought mediation to be unnecessary at first. Like many couples, the Hendersons assumed that they would both have to hire attorneys to dissolve their marriage. They tried splitting their assets and working out a parenting agreement themselves, but bitter feelings toward each other led to poor communication and lots of arguments. When they began seeking legal representation, Donna's counselor suggested that she consider mediation.

When they first began considering divorce, Donna and James had started relationship counseling through Regain. James stopped attending therapy within a few weeks, but Donna continued, feeling more empowered with every session. Although she was open to the idea of mediation, she thought James would never agree. Though he did have his reservations, James agreed to try mediation. Within a few sessions, the couple had agreed on the settlement details and felt ready to move forward with their divorce.

Though the couple had to make some concessions when it came to possessions and time with the children, they ended up with an agreement that was both fair and suitable. A few years after the divorce, James is happy to have chosen mediation over a contested divorce. "Fighting in court would have hurt our children," James reflected. Now that they are both remarried, Donna is glad that her divorce with James was amicable.

How to find a mediator

There are many ways to find a mediator if you are interested in settling your divorce without a drawn-out legal battle. You could start with a quick Google search in your area, but it's probably better to get a referral. Possible sources for a mediator referral include:

• A family member, friend, or therapist
• Professional mediation groups such as mediation.org and Mediate.com
• A local attorney

When selecting a divorce mediator, make sure you choose licensed ones who have extensive experience with mediation. Sometimes mediators are attorneys, but other times they are not.

Regardless, the best divorce mediators possess an extensive skillset that allows them to offer solutions to complicated problems. For this reason, trained therapists or counselors often make great divorce mediators.

The process: How divorce mediation works

Because the rules surrounding mediation can vary from state to state, the process isn't “cookie cutter.” For example, in many places, couples who are divorcing attend mediation together in the same room. Other areas separate the parties, and the mediator moves back and forth between them. Even though mediation can differ depending on where you live, generally, mediation moves through something like the following stages:

• Introduction - During this initial meeting, the mediator will allow parties to discuss why they have chosen mediation and what they hope to gain. The mediator will provide basic information about the process, guidelines, as well as expectations. During this time, the mediator may assess the issues you agree/disagree on for future planning.
• Information gathering - Information about finances and other relevant documentation will be given to the mediator. During this time, divorce-related problems will be identified, and the mediator will propose effective solutions. All discussions will take place in a peaceful, judgment-free environment where both parties are encouraged to express their true feelings and concerns regarding the divorce, finances, assets, debts, liabilities, children, etc.
• Guidance - The mediator will then guide the divorcing couple into making agreements related to finance and family. If children are involved, a comprehensive parenting plan that outlines support, custody, and visitation will be drafted as well. Once all issues are resolved through mediation discussions, the final steps can take place.
• Agreement - During this stage, the mediator will draft a legally binding document and present it to the divorcing parties. If attorneys are involved, they will go over the document with their clients. Once everyone agrees, all parties will sign, and the agreement will become a final judgment.

The cost of divorce mediation

As with any legal service, the cost will vary depending on the mediator you choose, the amount of time it takes to settle your issues, if you have minor children, and if there are extenuating circumstances that make your case unusually difficult.

Mediation fees can range from $50 to $200 an hour, which can seem like quite an expense to many divorcing couples. Statistics repeatedly show, however, that the upfront cost of mediation is less than the amount it would cost to take a contested divorce to trial. Though every situation is different, most couples find that they saved money by mediating their divorce instead of taking it to court.

When divorce mediation is not an option

While mediation is the best choice for many divorcing couples, it's not the solution for every situation. When deciding if mediation is for you, ask yourself the following questions: Do we both want to get a divorce? Do we have a setlist of assets/debts? Can we communicate enough to try mediation? If the answer to any of these questions is an unequivocal “no,” mediation may not be your best option. Other situations in which mediation usually isn't a good fit can include:

• Divorces in which one of the parties refuses to give mediation a chance. If your spouse is unwilling to give mediation a shot, it will waste time and money. Instead, you're probably best preparing for trial.
• Divorces in which both parties can agree on their own. Simple divorces and divorces where parties have no trouble coming up with an agreement regarding issues like child support, child custody, and spousal support, on their own don't need to be mediation. Instead, speak with an attorney about an uncontested divorce.
• Divorces in which one or both of the parties are incarcerated or incapacitated. For mediation to be successful, both parties must be present and capable of making sound decisions in their (and their children's) best interest. There are avenues for divorce if your spouse is incapable of making these decisions, but mediation isn't one of them.
• Divorces involve domestic violence or in which a partner fears for their safety. For a real resolution to take place, both partners have to be comfortable communicating. If you want a divorce but are facing domestic violence, don’t hesitate to reach out for help.

If you or a loved one is experiencing abuse, contact the Domestic Violence Hotline at 1-800-799-SAFE (7233). Support is available 24/7.

• Divorces in which a spouse believes the other may be hiding assets. Once a divorce has been through mediation, the agreement signed is binding. If you think your spouse is hiding assets, it might be best to involve an attorney. Without honesty and open communication from both parties, mediation won't be successful.

Navigate divorce with professional support

If you and your spouse are considering or know that you want divorce, mediation can be an effective option to ensure that you come to agreements that work for both of you, as amicably as possible. 

If you’re still unsure about divorce mediation, consider enlisting the help of a relationship therapist by signing up with Regain. Counseling can help you regain communication with your spouse, getting rid of the need for mediation altogether, or assist you in preparing for the mediation process. Either way, you can be better prepared for the next phase of your life: moving on from your divorce. Regain’s online format allows sessions to be held anywhere via phone, video, or instant in-app messaging. You and your ex-partner can join sessions from the same location, or separately if you don’t wish to be in the same place together but still want to have sessions together.